N.J. Model Criminal Jury Charge, N.J.S.A. 2C:18-2.1

Approved 8/18/25

HOME INVASION BURGLARY

(N.J.S.A. 2C:18-2.1) (Cases arising after October 18, 2024)

The indictment charges the defendant with committing the crime of home invasion

burglary. The indictment reads as follows:

(Read Indictment)

The pertinent part of the statute on which this indictment is based reads as follows:

A person is guilty of home invasion burglary if, with purpose to

commit an offense therein or thereon, the person, without license or

privilege to do so, enters or surreptitiously remains in a residential

dwelling or accommodation, or a separately secured portion thereof,

and in the course of committing the offense, the person:

(1) Purposely, knowingly, or recklessly inflicts, attempts to inflict,

or threatens to inflict bodily injury on anyone; or

(2) Is armed with or displays what appear to be explosives or a

deadly weapon.

In order for you to find the defendant guilty of the crime of home invasion burglary, the

State must prove beyond a reasonable doubt the following elements:

(1) That the defendant, without license or privilege to do so, entered

or surreptitiously remained in a residential dwelling or

accommodation, or a separately secured portion thereof;

(2) That the defendant did so with purpose to commit an offense

therein or thereon; and

(3) I n the course of committing the offense, the defendant either

purposely, knowingly, or recklessly inflicted, attempted to inflict, or

threatened to inflict bodily injury on anyone , or was armed with or

displayed what appeared to be explosives or a deadly weapon.

(Choose as appropriate)

The first element that the State must prove beyond a reasonable doubt is that the defendant,

without license or privilege to do so, entered a residential dwelling or accommodation, or a

separately secured portion thereof.

(Choose as appropriate)

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(N.J.S.A. 2C:18-2.1)

The first element that the State must prove beyond a reasonable doubt is that the defendant,

without license or privilege to do so, surreptitiously remained for some duration in a residential

dwelling or accommodation, or a separately secured portion thereof .1 Surreptitiously means

secretly, stealthily, or fraudulently.2

(Resume charge)

“Residential dwelling or accommodation” means a permanent structure intended as and

currently being utilized as a residence by a private person or persons and any place adapted for

overnight accommodation of persons.3

The second element that the State must prove beyond a reasonable doubt is that the

defendant did so with purpose to commit an offense therein or thereon.

“Purpose to commit an offense” means that the defendant intended to commit an unlawful

act4 inside the residential dwelling or accommodation, or a separately secured portion thereof .

[WHERE APPLICABLE CHARGE: The unlawful act(s) allegedly intended are set forth in

count(s) _____ of this indictment.]5

A person acts purposely with respect to the nature of their conduct or a result thereof if it

is their conscious object to engage in conduct of that nature or to cause such a result. Purpose, with

1 See N.J.S.A. 2C:18-2a(2) and Cannel, Criminal Code Annotated, Comment 4, N.J.S.A. 2C:18-2

(requirement that this offense “requires a stay of some duration”).

2 Black’s Law Dictionary at p. 1445 (6th ed. 1990).

3 N.J.S.A. 2C:18-1.

4 State v. Robinson, 289 N.J. Super. 447, 455 (App. Div. 1996); N.J.S.A. 2C:1-14k.

5 “[W]here the circumstances surrounding the unlawful entry do not give rise to any ambiguity or

uncertainty as to a defendant’s purpose in entering a structure without privilege to do so [and] led inevitably

and reasonably to the conclusion that some unlawful act is intended to be committed inside the structure,

then specific instructions delineating the precise unlawful acts intended are unnecessary.” Robinson , 289

N.J. Super. at 458 (emphasis in original). However, where the circumstances surrounding defendant’s

purpose in entering or surreptitiously remaining in the structure or research facility are ambiguous, i.e., the

evidence suggests both criminal and non-criminal purposes for the entry, then it might be necessary to direct

the jury’s consideration to the specific criminal acts alleged in the indictment, if there are any. See, e.g.,

State v. Marquez, 277 N.J. Super. 162, 168-69 (App. Div. 1994).

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(N.J.S.A. 2C:18-2.1)

purpose, and similar words have the same meaning.6 In other words, in order for you to find that

the defendant acted purposely, the State must prove beyond a reasonable doubt that it was the

defendant's conscious object at the time they unlawfully entered [OR surreptitiously remained in]

the residential dwelling or accommodation to commit an unlawful act.7

A person's purpose is a state or a condition of the mind which cannot be seen and can only

be determined by inferences from conduct, words or acts. A state of mind is rarely susceptible of

direct proof, but must ordinarily be inferred from the facts. Therefore, it is not necessary, members

of the jury, that witnesses be produced to testify that an accused said they had a certain state of

mind when they engaged in a particular act. Their state of mind may be gathered from their acts

and their conduct, and from all they said and did at the particular time and place, and from all of

the surrounding circumstances.

The third element that the State must prove beyond a reasonable doubt is that, in the course

of committing the offense, the defendant either purposely, knowingly, or recklessly inflicted,

attempted to inflict, or threatened to inflict bodily injury on anyone, or was armed with or displayed

what appeared to be explosives or a deadly weapon.

An act shall be deemed “in the course of committing” an offense if it occurs in an attempt

to commit an offense or in immediate flight after the attempt or commission.

8

(Charge when appropriate)

(A)(1) In this case the State has alleged that the defendant purposely inflicted bodily injury

on ____________________ (alleged victim).

6 N.J.S.A. 2C:2-2b(1).

7 If the jury may find from the facts that although defendant entered the residential dwelling or

accommodation without permission, he did not do so with the purpose to commit an offense therein, then

the unauthorized entry may constitute a criminal trespass. In that case, the jury should be charged on the

appropriate lesser included offense of criminal trespass. See N.J.S.A. 2C:18-3.

8 N.J.S.A. 2C:18-2.1.

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(N.J.S.A. 2C:18-2.1)

I have already defined the term “purposely.”

(Charge when appropriate)

(A)(2) In this case the State has alleged that the defendant knowingly inflicted bodily

injury on ____________________ (alleged victim). A person acts knowingly with respect to the

nature of their conduct or the attendant circumstances if they are aware that their conduct is of that

nature, or that such circumstances exist, or they are aware of a high probability of their existence.

A person acts knowingly with respect to a result of their conduct if they are aware that it is

practically certain that their conduct will cause such a result. “Knowing,” “with knowledge,” or

equivalent terms have the same meaning.9

(Charge when appropriate)

(A)(3) In this case the State has alleged that the defendant recklessly inflicted bodily injury

on ____________________ (alleged victim). A person acts recklessly with respect to a material

element of an offense when they consciously disregard a substantial and unjustifiable risk that the

material element exists or will result from their conduct. The risk must be of such a nature and

degree that, considering the nature and purpose of the actor’s conduct and the circumstances

known to them, its disregard i nvolves a gross deviation from the standard of conduct that a

reasonable person would observe in the actor’s situation. “Recklessness,” “with recklessness” or

equivalent terms have the same meaning.

10

(Charge when appropriate)

(A)(4) In this case the State has alleged that the defendant purposely attempted to inflict

bodily injury on ____________________ (alleged victim). To find the defendant guilty of

attempting to inflict bodily injury on another, the State must prove beyond a reasonable doubt that

9 N.J.S.A. 2C:2-2b(2).

10 N.J.S.A. 2C:2-2b(3).

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(N.J.S.A. 2C:18-2.1)

the defendant purposely 11 attempted to inflict bodily injury to another. If you find beyond a

reasonable doubt that the defendant attempted to inflict bodily injury on another, it does not matter

whether such injury actually resulted.

The law provides that a person is guilty of attempt if, acting purposefully, they:

(Select appropriate section)

(1) Engaged in conduct that would constitute the offense if

the attendant circumstances were as a reasonable person

would believe them to be;

(or)

(2) Did (or omitted to do) anything with the purpose of causing

bodily injury to another without further conduct on their part. This

means that the defendant(s) did something designed to cause bodily

injury without having to take any further action.

(or)

(3) Did (or omitted to do) anything that, under the circumstances as

a reasonable person would believe them to be, was an act (or

omission) constituting as substantial step in a course of conduct

planned to culminate in their commission of the crime. The step

taken must be one that is strongly corroborative of the defendant’s

criminal purpose. The accused must be shown to have had a

firmness of criminal purpose in light of the step(s) they had already

taken. These preparatory steps must be substantial and not just very

remote preparatory acts.

12

(Charge when appropriate)

(A)(5) In this case the State has alleged that the defendant knowingly13 threatened to inflict

bodily injury on ____________________ (alleged victim).

I have already defined the term “knowingly.”

11 When a person actually causes bodily injury, it does not matter whether his mental state is

purposeful, knowing or reckless (under circumstances manifesting extreme indifference to the value of

human life). When, however, the person attempts to cause, but does not caus e, bodily injury, he must act

purposefully. Cf. State v. McAllister, 211 N.J. Super. 355, 362 (App. Div. 1986).

12 State v. Fornino, 223 N.J. 531, 538 (App. Div. 1988), certif, den ied, 111 N.J. 570 (1988); cert.

denied, 488 U.S. 859 (1988).

13 See N.J.S.A. 2C:2-2c(3).

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(N.J.S.A. 2C:18-2.1)

(Resume charge)

The phrase “bodily injury” means physical pain, illness or impairment of physical

condition.14

(Charge when appropriate)

(B) In this case the State alleges that the defendant was armed with or displayed what

appeared to be (CHOOSE AS APPROPRIATE) (explosives) (or a deadly weapon). For a person

to be armed with or display what appears to be (CHOOSE AS APPROPRIATE) [explosives]

[or a deadly weapon] , they must first be in possession of it/them. The word “possess” means a

knowing, intentional control of a designated thing, accompanied by a knowledge of its character.

I have already defined the term “knowingly.”

Thus, the person must know or be aware that they possess the item (in this case), and they

must know what it is that they possess or controls (that it is ____________________).

[WHERE APPLICABLE CHARGE: This possession cannot merely be a passing control

that is fleeting or uncertain in its nature. In other words, to “possess” within the meaning of the

law, the defendant must knowingly procure or receive the item possessed or be aware of their

control thereof for a sufficient period of time to have been able to relinquish their control if they

chose to do so.]

When we speak of possession, we mean a conscious, knowing possession. The law

recognizes two kinds of possession: they are actual possession and constructive possession.

A person is in actual possession of a particular article or thing when they know what it is:

that is, they have knowledge of its character and knowingly have it on their person at a given time.

A person who, with knowledge of its character, knowingly has direct physical control over a thing,

at a given time, is in actual possession of it.

14 N.J.S.A. 2C:11-1a.

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(N.J.S.A. 2C:18-2.1)

Constructive possession means possession in which the person does not physically have

the property, but though not physically on one’s person, they are aware of the presence of the

property and is able to and has the intention to exercise control over it.

A person who, although not in actual possession, has knowledge of its character, knowingly

has both the power and the intention at a given time to exercise control over a thing, either directly

or through another person or persons, is then in constructive possession of it.

[WHERE APPLICABLE CHARGE: The law recognizes that possession may be sole or

joint. If one person alone has actual or constructive possession of a thing, possession is sole. If

two or more persons share actual or constructive possession of a thing, possession is joint; that is,

if they knowingly share control over the article.]

In order for defendant to be guilty of being “armed with” (CHOOSE AS

APPROPRIATE) (explosives) (or a deadly weapon) , however, the State must prove not only

possession but also immediate access to that (CHOOSE AS APPROPRIATE) (explosives) (or a

deadly weapon). The State must prove beyond a reasonable doubt that the item(s) was/were easily

accessible and readily available for use during the burglary. 15 [WHERE APPLICABLE

CHARGE: As long as such ready accessibility is proven, it does not matter whether defendant

was armed prior to arriving at the scene of the burglary or obtained the weapon during the course

15 State v. Merritt , 247 N.J. Super. 425, 430- 31 (App. Div. 1991) (“[T]he term ‘armed’ is not

synonymous with the term ‘in possession of a weapon’...,” which is the standard for mandatory sentencing

under the Graves Act [N.J.S.A. 2C:43- 6c]). “The term ‘armed’ connotes not on ly possession but also

immediate access to a weapon.” Id. at 430. Note that in State v. Rolon, 199 N.J. 575, 584- 85 (2009), in

which it was held that in a prosecution for first degree robbery involving a non- firearm weapon, “a

defendant cannot be considered to have been ‘armed with a deadly weapon’ unless he had immediate access

to the potential weapon and an intent to use it in a way that is ‘capable of producing death or serious bodily

injury,’” the Court rejected the State’s reliance on the above-quoted definition of “armed” because Merritt

was “decided under an entirely different statutory scheme.” However, in footnote 1 of Rolon , the Court

cautioned that “[w]e do not decide here whether our reasoning regarding the robbery statute is applicable

in the burglary setting.” Id. at 585. But see the concurring opinion in Rolon, 199 N.J. at 587-91, in which

two justices expressed the belief that the rationale of Rolon regarding non-firearm armed robbery applies

equally to the second-degree burglary statute.

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(N.J.S.A. 2C:18-2.1)

of the burglary.]16

(Choose as appropriate)

“Explosive” means any chemical compound or mixture that is commonly used or is

possessed for the purpose of producing an explosion and which contains any oxidizing and

combustible materials or other ingredients in such proportions, quantities or packing that an

ignition by fire, by friction, by concussion or by detonation of any part of the compound or mixture

may cause such a sudden generation of highly heated gases that the resultant gaseous pressures are

capable of producing destructive effects on continuous objects.

17

(Or)

“Deadly weapon” means any firearm or other weapon, device, instrument, material or

substance, whether animate or inanimate, which in the manner it is used or is intended to be used,

is known to be capable of producing death or serious bodily injury or whic h in the manner it is

fashioned would lead the victim reasonably to believe it to be capable of producing death or serious

bodily injury.18

“Serious bodily injury” means bodily injury which creates a substantial risk of death or

which causes serious, permanent disfigurement, or protracted loss or impairment of the function

of any bodily member or organ.

19 [WHERE APPLICABLE CHARGE: I have already defined

the term “bodily injury.”]

If you find that the State has proved the crime charged and each of its elements beyond a

reasonable doubt, then you must find the defendant guilty.

If you find that the State has failed to prove any element beyond a reasonable doubt, then

16 This sentence should be considered when it is alleged that the weapon with which defendant was

“armed” was part of the proceeds of a theft committed during the burglary. Merritt, 247 N.J. Super. at 430.

17 N.J.S.A. 2C:39-1e.

18 N.J.S.A. 2C:11-1c.

19 N.J.S.A. 2C:11-1b.

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you must find the defendant not guilty.